P KRISHNAN Vs. LAKSHMI ANIMAL

JUDGEMENT

(1.) THIS Second Appeal arises out of a suit for permanent injunction O.S.No.402 of 1972, on the file of the Additional District Munsif, Poonamallee. The first-defendant is the appellant herein. The plaintiff is the first-respondent. The second-defendant died pending the suit and the third-defendant, who is the second-respondent herein was added as the legal representative. The relationship amongst the parties runs as follows: The second-defendant was the father. One krishnammal was his second wife. The plaintiff, the first-defendant and the third-defendant through his first wife. The suit-property was a joint acquisition by the second-defendant and Krishnammal. The pleas of the defendants that the acquisition in the name of Krishnammal, was only benami for the second-defendant has been rejected by the two Courts below, as having no substance. On 15.9.1971, as per ExA.2, there was a Will by the second-defendant and Krishnammal, as per the terms of which the suit-property should go to the plaintiff for her life and thereafter to here grand-children. Krishnammal died on 5.11.1971. On 17.3.1972, as per Ex.B.6, the second-defendant revoked ExA.2. On the same date, he executed a fresh Will as per Ex.B.7, under the terms of which the first-defendant was given the suit property. The plaintiff wanted to maintain the possession of the suit-property, which was admittedly with her on the date of the suit, though the defendants would deny the right of the plaintiff to be in possession. The first defendant and the second-defendant raised contest mainly relying on the revocation deed Ex.B.6 and the subsequent Will Ex.8.7. The first Court discredited Ex.B.6. and B.7 and upheld the maintainability of the suit for permanent injunction. As a result of its findings, the first Court decreed the suit, as prayed for. The first-defendant appealed in A.S.No.14 of 1980, on the file of the Subordinate Judge of Tiruvellore. The lower Appellate Court upheld the maintainability of the suit. While doing so, it took note of the subsequent event, namely the death of the second defendant pending the suit. The lower Appellate Court found Ex.B.7 as not true, genuine and a valid document. Though in the earlier passage of its judgment, the lower Appellate Court opined that a joint Will is revocable at any time either of the testators during their joint life or after the death of one of them, by the survivor, yet ultimately it held that such revocation by the second-defendant was not permissible by executing Ex.B.6 and B.7. Rejecting Ex.B.7, the lower Appellate Court countenanced the right of the plaintiff under ExA.2. In this view, it dismissed the appeal of the first-defendant, confirming the judgment and decree of the first Court. THIS second appeal is directed against the judgment and decree of the lower Appellate Court.

(2.) AT the time of admission of the second appeal, this Court mooted out the following substantial questions of law for consideration:

(3.) BEFORE we consider the second substantial question of law, one controversy has got to be settled. Though the second substantial question of law does not specifically take in this aspect, yet it has got to be probed into and a finding must be given. The aspect is as to whether Ex.B.7 could be ignored as not genuine, as contended by the plaintiff. There is one feature which was omitted to be taken note of by the two Courts below when they investigated into this aspect. The author of Ex.B.7 was the second defendant. While he was alive, he himself vouch safed and affirmed the genuineness of Ex.B.7 in his pleadings. The second defendant wanted to sustain Ex.B.7. Under those circumstances, it will be futile to launch upon an enquiry as to whether Ex.B.7 was genuine or not. Hence, the findings of the courts below on this aspect are uncalled for and unwarranted and in ignorance of the above crucial features and they require setting aside and they are being hereby set aside and it must be held that Ex.B.7. is genuine, valid and operative.